Monthly Archives: June 2013

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New Muskegon County Circuit Court Judge Kathy L. Hoogstra has taken her place on the bench, as she succeeds longtime Judge John C. Ruck, who retired in March.

Mlive reports Hoogstra will take over Ruck’s docket of Family Court Division cases, the division Ruck presided over since the division was created in 1998. Visiting judges have been filling in on Ruck’s former cases for the last three months.

Hoogstra will finish Ruck’s term, which ends Jan. 1, 2015. She said she fully intends to run for a full six-year term in 2014.

She is the second new judge for the four-judge 14th Circuit to take office this year, and Muskegon County’s second female circuit judge in history. The first, Judge Annette R. Smedley, took office Jan. 1 after winning election in November 2012 to a six-year term, succeeding Judge James M. Graves Jr. upon Graves’ retirement.

Hoogstra previously served as the county’s probate court administrator and register. She also has worked as a Family Court referee and public defender and as a judicial law clerk for 14th Circuit Court.

The 36th District Court, which serves the city of Detroit, conducts about a dozen jury trials each year but sends jury summons to approximately 4,500 people.

Those who heed the call get paid $25 and mileage, even if they never see the inside of the courtroom.

The summonses are unnecessary, waste citizens’ time and taxpayers’ money, according to Judge Michael J. Talbot, the recently appointed special judicial administrator of the 36th District Court.

Just down the street, at the Wayne County Circuit Court’s Frank Murphy Hall of Justice, there is usually a surplus of jurors. Talbot wants to tap into that and eliminate the 36th District Court’s jury summons operation.

He’s calling the plan the “As Needed Jury Program.”

“Here’s how the program will work: when a judge of the 36th District Court is certain that he or she will have a jury trial, a request will go to the Frank Murphy Hall of Justice, which houses the criminal division of the Wayne County Circuit Court,” Talbot explained in prepared remarks.

“When juries have been selected for trial at the circuit court, the circuit court jury services department will notify the district court of the number of Detroit residents who are available for jury service from the circuit court pool.

“The district court will arrange for potential jurors to have transportation from Frank Murphy to the district court, or jurors can walk the short distance between the two courts. After jury selection at the 36th District Court is completed, the remaining jurors will be dismissed.”

Embattled Wayne County Circuit Judge Wade McCree told a news reporter some months back that there was “no shame in [his] game,” regarding a shirtless photo McCree sent of himself to a Wayne County Sheriff’s Office employee.

But a retired Jackson County Circuit judge has ruled that “there is shame in the McCree game: shame to the good name of McCree and shame brought upon the judiciary of the State of Michigan.”

Judge Charles A. Nelson, who oversaw the disciplinary hearing of McCree last month in Ann Arbor, issued a 17-page decision (MiLW No. 14-82493), which the Michigan Judicial Tenure Commission will now consider.

On March 12, the JTC had filed a 20-page complaint against the judge (who the Michigan Supreme Court suspended without pay Feb. 8), and the counts included improper conduct, false reporting of a felony, improper bench conduct and demeanor and misrepresentations to the JTC.

In its complaint, the JTC said McCree privately discussed his mistress Geniene La’Shay Mott’s child support case, which was before him. McCree instructed her to keep him informed when Robert King, the father of her 6-year-old daughter, was not in compliance with his child support arrangements. McCree had initially denied the allegations.

McCree, who is married, admitted in his official answer that he “became involved in a sexual relationship with Ms. Mott that began in June 2012,” and “that on a few occasions, the (sexual) relationship took place” in his chambers. Mott alleged being pregnant with McCree’s child; McCree denied this, calling himself the “King of latex.”

Regarding the charge of improper conduct, Nelson wrote: “Whether Mott is pregnant or not and who is the baby’s father are not of concern, we leave that for the Jerry Springer show. But the events over the October 30 through late November period show a pattern of lies and deception in his dealings with Mott (not to say that she was an innocent party in those events).”

Nelson further wrote that McCree’s action in King’s case show “a gross dereliction of judicial duties. His standard of conduct, for his own sexual gratification, has severely damaged the public’s view of the judiciary. His irresponsible conduct could only lead to the public having no confidence in the judiciary. He clearly knew he was especially subject to public scrutiny when he had a case pending before the JTC when he began his escapade with Mott. He knew he was on the ‘chopping block.’

“Yet he continued to engage in activities which would bring even greater scrutiny. He was using his judicial position to advance his own interests by keeping the King case. His social relationship gave Mott the belief that she was able to influence his judicial duties. He continuously engaged in ex pate communications with Mott about the case.”

Nelson addressed McCree’s false reporting of a felony, in which McCree made a complaint to the prosecutor’s office that he was being stalked by Mott and that she sought to extort money from him. But a timeline breakdown showed McCree “just playing the game of trying to outsmart Mott,” Nelson wrote.

“It is clear that he was improperly seeking to get the prosecutor and her office involved with alleged crimes that were not existent,” Nelson added.

Nelson further charged McCree with improper conduct over a case in which McCree should not have been involved. An uncle of Mott had a case before McCree for felony nonsupport, but when the uncle was picked up on a warrant, McCree was not on the bench, and another judge took over.

Mott stated that she talked to McCree about the uncle being locked up, and sent a note and text messages to McCree about the case. McCree then signed an order for reduction of bond for the uncle.

“The main import of the matter to me is that he again had a case in which Mott had an interest,” Nelson wrote. “He was ethically not to be involved and should not have been signing any orders pertaining to the case. McCree’s actions were beyond an appearance of impropriety — they were in violation of the ethical standards.”

Regarding the improper bench conduct count — in which McCree “sent text messages making disparaging remarks about some women in general and some specific persons” some of which were sent while he was on the bench — Nelson said the texts were used in “a private context and when used there was no reason to believe that the statements would become public” and does not rise “to the level of judicial misconduct.”

One of McCree’s alleged texts to Mott from the bench read: “C’mon, U’r talking about the ‘docket from hell,’ filled w/tatted up, overweight, half-ass English speaking, gap tooth skank hoes … and then you walk in.”

Nelson also said the count regarding misrepresentations made to the JTC over McCree’s ending his relationship with Mott also don’t warrant JTC action.

The Michigan Supreme Court will decide if further action is warranted against McCree.

The Calhoun County District Court plans to launch its new Veterans Treatment Court by the end of the year. The program is aimed at the problems that former military personnel face when they return home from service.

The new court is designed for about 100 offenders and participation is voluntary.

According to Katherine Ambrose, deputy district court administrator and administrator of the new Veterans Treatment Court, offenders who have served in the military will receive treatment for alcohol and drug use, mental health issues and lack of VA benefits.

Chief District Judge John Holmes said that much of the program is geared toward mental health issues because post-traumatic stress disorder is a big problem among veterans. “They go through horrible experiences like in Iraq and Afghanistan and they come back to be in a normal life,” he told the Battle Creek Enquirer.

Veterans Treatment Courts are similar to other specialty courts, like mental health and sobriety courts, and are designed for specific crimes or circumstances. “The advantage is that it is aimed at therapy for the offender,” Holmes said. “It raises their awareness of the effect of their crimes and gets them into treatment rather than just sending them away. … And things like restorative justice helps the defender and the victim.”

The court is intended for people with prior military service who were not dishonorably discharged, are county residents, are charged with a misdemeanor that’s related to their military service, are abusing drugs or alcohol or suffering from mental illness but are not a substantial risk to public safety, and are not charged with homicide, serious assault or criminal sexual conduct.

“Veterans court will have a lot of similarities to sobriety court,” said District Judge Frank Line, who will supervise the Veterans Treatment Court. “It can be a sobriety or drug court for veterans. We think it will help them with their problems.”

According to Line, one of the key components will be mentors assigned to each participant. The court is hoping to assign each participant a mentor, who was also once in the military, of similar age, from the same branch and same war. “They will buddy up to the vet,” Line said.

Attorney Roger Caswell, a military veteran, belongs to a committee that’s helping to organize the Veterans Treatment Court. He is looking for mentors. “Everyone I have talked to said it is a great idea, but we are really early in the process,” he stated.

Ambrose said the committee is working with Prosecutor David Gilbert to determine whether participants who graduate can get a reduction in their criminal charges, which would be an incentive to participate. “The idea is to get them help,” Gilbert said. “But there could be incentives to participate on misdemeanor charges.”

Another part of the program will be determining whether the veteran is receiving VA benefits, Ambrose said. That will be accomplished with the help of an outside benefits coordinator.

According to Holmes, the real goal is to reduce the number of people going to jail and the number of repeat offenders. “Many of these people are not criminals; they are people who are ill,” he remarked. “The system is designed to help them adjust and function normally.”

Holmes, who has served 20 years on the bench, said that specialty courts do, indeed, help people. “I don’t think the punishment model works at all,” he observed. “It satisfies the public, but it is too expensive and it not necessary for most offenders. And it doesn’t do much, especially for people with drug offenses and the mentally ill.”

Not everyone is happy about the legislation that passed last week creating the Michigan Indigent Defense Commission, a governing body that will examine the patchwork system of indigent defense and create a new system.

Grand Traverse, Leelanau and Antrim counties won’t be able to maintain the quality of their defense programs if stripped of local control, 13th Circuit Court Judge Thomas G. Power told The Traverse City Record-Eagle.

“Under this proposal, judges are excluded from the process of selecting attorneys, and the problem is that judges are the only neutral people who see these lawyers in action,” Power told the paper. “I think the quality will go down.”

Power and fellow 13th Circuit Court Judge Philip E. Rodgers told the Record-Eagle that attorneys are compensated on an events basis, such as for the interview and investigation, conferences, plea and sentencing. Pay is roughly $800 for an attorney who represents a defendant who pleads guilty and is sentenced, Rodgers said in the interview. Appointed attorneys are paid by the half-day for trials, and capital case trials are paid at an hourly rate.

Rodgers said he’s not had problems recruiting competent attorneys to take cases.

Frank Kelley, the longest serving attorney general in Michigan history, will be honored with a bronze plaque as a special tribute to celebrate his achievements and his love of Alpena.

26th Circuit Chief Judge Michael Mack, who has known Kelley since Mack was a boy, recently got approval from the county’s finance committee to order the plaque that will be placed near the circuit court entrance, reports The Alpena News.

As a practicing Alpena lawyer, Kelley spent a lot of time trying cases at the circuit court. The idea to honor Kelley began when Mack and others who worked with Kelley met at a conference and talked about how best to honor their friend. Mack said that’s when a fund was started.

Kelley served as the Alpena city attorney, in addition to practicing law and raising his family in Alpena. He was appointed Michigan AG in 1961 by Gov. John B. Swainson. During his 37 years as attorney general, Kelley served under six governors. He also ran for the U.S. Senate and was considered by the Democratic Party to run for governor. In addition, Kelley helped form the Consumer Protection Agency and various environmental protection departments.

“Frank has always thought of Alpena as his hometown and he was always very loyal to people in Alpena,” Mack said. “Even when he was in Lansing, he would hire Alpena people who were in law school down there. He made it a point to hire people from Alpena into the attorney general’s office who were in Lansing. Frank has always taken pride in the fact Alpena was his town.”

The plaque, which will be 30 by 50 inches, will have Kelley’s image engraved in the bronze and an inscription.

“I think that if one kid from Alpena saw that plaque and said ‘God, this guy went places,’ and they went out there and tried to do something better, then it is worth every penny,” Mack remarked.

Mack said the plaque has been ordered and, once it is complete, there will be a special event for its unveiling. He said that he hopes to have things in place before Kelley goes south for the winter.

This has nothing to do with laundry products and soft sales in the fabric softener market.

It has something to do with most of the 122 lawyers at the Sacramento-based law firm of Downey Brand doing more of their own office work these days, according to an article in the Sacramento Business Journal.

Ah, the wonders of modern technology.

The SBJ reports that the “cuts, affecting about 10 percent of the firm’s support staff, were made to adjust the proportion of support staff members to attorneys.”

This isn’t the first time the firm has washed out support staff. In 2009, 14 administrative and support positions went down the drain.

A Michigan Medical Marihuana Act patient who transferred a small amount of the drug to another MMMA patient can be tried on a charge of delivering marijuana, the Michigan Supreme Court has ruled.

The high court’s order reversed the Michigan Court of Appeals in People v. Green. The COA panel in Green affirmed the trial court’s dismissal of the charge. The COA ruled that uncompensated transfers of marijuana between MMMA patients constitutes “medical use” of marijuana, which is protected by § 4(a) of the MMMA.

Not so, the MSC declared.

“In Michigan v McQueen, 493 Mich 135 (2013), this Court held that, under the MMMA, ‘§ 4 immunity does not extend to a registered qualifying patient who transfers marijuana to another registered qualifying patient for the transferee’s use because the transferor is not engaging in conduct related to marijuana for the purpose of relieving the transferor’s own condition or symptoms.’”

The case returns to Barry County Circuit Court Judge Amy L. McDowell for further proceedings.

Some people are questioning whether it is appropriate for Harbor Springs attorney Neil Marzella to represent a northern Michigan real-estate developer in the pursuit of various projects.

Why the skepticism? Because Marzella also chairs the Little Traverse Conservancy — an organization dedicated to “protecting the natural diversity and beauty of northern Michigan by preserving significant land and scenic areas, and fostering appreciation and understanding of the environment . …” (Source: LTC website.)

Residents have expressed their concern in several letters to the editor that recently appeared in the Northern Express.

One letter, written by a Petoskey/Indian River resident, stated in part: “… How ironic is it … that the chairman of LTC’s board, Neil Marzella, is leading the charge to develop a world-class motorsports complex in Indian River that, if built, will permanently scar, pollute and degrade an otherwise quiet and scenic community. … How is it that an individual can lead a prominent environmental conservancy and promote environmentally destructive development at the same time? While Marzella’s dual roles may not be a technical conflict of interest, what about ethics … not to mention civic responsibility?”

Another letter, written by a Mackinaw City resident, said: “While I often wonder whether some attorneys have a conscience, or, if so, do they ever listen to it, it is true that in our society every person who can afford to is entitled to buy the services of an attorney. It may seem hypocritical for an attorney to both chair an organization dedicated to preserving our natural environment, and represent a developer of a project doing the opposite. … Harbor Springs attorney Neil Marzella also has represented developer Ira Green, who demolished one historic downtown Mackinac Island building and wants to demolish another, and is in the process of filling in the last vacant lot with a view of the harbor from the downtown Mackinac Island.”

When asked about these letters and the concerns that have been raised, Marzella told Michigan Lawyers Weekly that his representation of the developers and serving as chair of the LTC is not a conflict of interest issue at all.

“I’m currently representing someone developing their property and I really don’t think it would be proper for me to say anything,” Marzella explained. “I have to think of what’s best for him and focus on what we need to do.”

Marzella said the “motive of the letter writers” is that “they just oppose this project.” He said “it has nothing to do with me or the conservancy.”

“I think issues like this are interesting for lawyers to think about and talk about,” Marzella told MiLW. However, he said that he doesn’t necessarily think it is appropriate to discuss it in detail while his client has a “project pending.”

Ever get an annoying letter and wish you could just tell it straight in your response? The sports website Deadspin had a 2010 post that is making the rounds again. It featured an exchange between two lawyers; the reply letter is breathtakingly succinct and on point.

Back in 1974, Dale O. Cox, a lawyer from Akron, Ohio, with season tickets to Cleveland Browns games, didn’t like the fact that fans had started throwing paper airplanes at the stadium. In a letter on his firm’s letterhead, he wanted to make sure that the team knew that “there is the risk of serious eye injury and perhaps an ear injury as a result of such airplanes.” Ear injury? Really?

Here’s the lawyerese, clearly setting up the team for a claim when he got hit in the ear: “Please be advised that since you are in a position to control or terminate such action on the part of the fans, I will hold you responsible for any injury sustained by any person in my party attending one of your sporting events.”

He concluded, “It is hoped that this disrespectful and possibly dangerous activity will be terminated.” Yes, and passive voice is to be avoided.

James N. Bailey, general counsel for Cleveland Stadium Corp., where the team played, wrote a three-line response, saying… well, read it yourself here.

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